What is the background to the legal challenge to minimum unit pricing?
The Scottish government decided to introduce minimum unit pricing (MUP) in 2012 in an effort to save lives and reduce alcohol harm in Scotland by setting a ‘floor price’ for the strongest, cheapest alcohol products in the off-trade, directly targeting the alcohol products that do the most damage. The legislation was due to come into force in 2013, but has been delayed by a legal challenge brought by a consortium of alcohol producers, led by the Scotch Whisky Association, Spirits Europe and the Comité Européen des Entreprises Vins. A first legal challenge against MUP was rejected by the Scottish Court of Session in 2013. However, the alcohol industry consortium launched an appeal and, as part of a second appeal hearing, the Scottish court referred a number of questions to the European Court of Justice (ECJ).
What did the European Court of Justice examine?
Both sides in the Scottish case accept that MUP would restrict access to the market there, as it prevents other European Union (EU) countries from exploiting a retail advantage with low cost alcohol products. The free movement of goods is protected under Article 34 of the Treaty on the Functioning of the European Union. However, Article 36 of the Treaty sets out the exceptions to and justifications for breaches of Article 34 if it can be shown that there are valid public policy grounds – in this case the protection of public health. The ECJ therefore primarily examined the justification of MUP on health grounds and whether the restriction of free trade is proportionate with regard to the effectiveness of MUP as a public health measure.
What does the judgement from the European Court of Justice say?
The ECJ judgement states that MUP is not precluded by EU law if it is considered to be an appropriate and proportionate response for “the protection of human life and health” and this cannot be achieved by other measures, such as increased taxation. The test as to whether MUP is legal or not then becomes whether it is more appropriate and proportionate than what the ECJ considers to be less restrictive tax measures, namely increasing excise duty. The ECJ states that the final test for whether or not MUP meets this condition rests with the national courts and the legal challenge to the Scottish Government’s introduction of MUP will now be reconsidered by the Court of Session in Scotland, in light of the ECJ judgement.
What does this mean for Ireland’s plans to introduce MUP?
We do not yet know if the decision by the Irish Government to introduce MUP will become subject to a legal challenge by the alcohol industry here. It should be noted that the introduction of MUP is supported by the publicans and off-licence operators in Ireland, but opposition to it has been voiced by those who represent manufacturers, including a number of global multinationals. Minister Varadkar said the Government remains committed to its plans to introduce this life-saving measure: “The Irish Government knows that a strong and convincing case can be made in favour of MUP over other measures. We believe that MUP is a proportionate measure and the only measure that would effectively target the widespread access to alcohol that is very cheap relative to its strength. This was backed up by the research conducted by Sheffield University which showed that MUP changes behaviour in those most at risk.” Minister Varadkar said the Government will defend its decision to introduce MUP against any legal challenge from the alcohol industry and he has asked his officials in the Department of Health to study the implications of the ECJ judgment in conjunction with the office of the Attorney General.